Office of Profit: a “Common Sense” understanding

In a generic sense, all the posts, positions, and offices of the republic, including the presidency, are "offices of profit". That is because article 152(1) requires us to take the meaning of a constitutional phrase or word in its generic sense "except where the subject or context requires" thinking "otherwise." In this write-up, I propose to consider two such "subjects or contexts"– the differentiating philosophies surrounding the representative and integrity branches of the state. I endorse what Justice ABM Khairul Hoque called a purposive and "common sense" interpretation of the constitution [Advocate Ruhul Quddus v Justice M A Aziz 60 DLR (2008) (HCD) 511].

The Representative Branch

Article 66(2)(f) bars the holders of the office of profits in the service of the republic from seeking membership in parliament. As per the opening clause of article 66(2), if an MP candidate is found to hold any office of profit, they are disqualified. If a sitting MP takes any office of profit, he/she becomes disqualified to continue as an MP. Article 66(3), however, declares the offices of the President, Prime Minister, Speaker, Deputy Speaker, Minister, Minister of State, and Deputy Minister as offices not of profit for "the purpose of this article". It must mean that the listed offices are the offices of profit for all other purposes. The High Court Division judgment in Justice M A Aziz's case confirms this understanding. Around 12 years earlier, Barrister Asrarul Hoque also pressed this view in Abu Bakar Siddik v Justice Shahabuddin Ahmed 17 BLD (1997) 31.

The constitution framers made some offices not of profit for the MP candidates or sitting MPs because these posts are meant for the political government of the country, for which the politicians and elected representatives should generally be considered a natural fit. It is also natural that people who held those offices previously could return to the parliament later, as the opposition MPs, for example. Hence, the exclusionary clause in article 66(3) is context-specific and politically sensible.

Interestingly, the office of the President was not on the list until 2011. But unlike other posts, a presidential candidate need not necessarily be a sitting MP, nor are the former presidents usually expected to seek the MP election later. Whatever the intention of the 2011 government was, the position remains the same – article 66(3) is an exception only to be applied to the elected representatives and political office-bearers.

The Integrity Branch

The integrity branches are institutions responsible for working as the fourth branch of the state. Comprised of unelected, tenured, job-secured and functionally independent office-bearers, these organisations run a powerful machinery of political neutrality and legal accountability against the political branch. It is, therefore, pertinent that they are insulated from political manipulation and post-retirement aspirations. Hence, the 1972 version of article 99 enunciated that retried judges are not eligible for "any other post or office" after retirement.

On the former judges' appointment to the presidency, we have Justice Shahabuddin Ahmed's case. In that case, the court validated Justice Shahabuddin Ahmed's nomination and election to the presidency in 1996. Prominent lawyers like Dr Kamal Hossain, Barrister M Amirul Islam, Barrister Rafiqul Hoque and the then Attorney General Barrister K S Nabi supported the nomination. They relied on some technical, I would say literal, differences between the presidency and other offices in the services of the republic. Those arguments had similar resonances to some of those we hear today – such as the President does not take remuneration (it's an honorarium rather), the office of President is a constitutional post, President is an elected (not appointed) post, President is the head of the state (not a servant of the republic), etc.

When pitched against the constitutional philosophies behind the integrity institutions, these arguments are destined to fail. The jurists who pressed those literalist arguments in Justice Shahabuddin Ahmed case shunned them in Masder Hossain case 52 DLR 2000 (AD) 82. They argued, and the Appellate Division agreed, that these types of technical distinctions could not stand. Advocate Mahmudul Islam and Barrister M Amirul Islam were categorical in claiming that all posts – 'parliament, executive, and judiciary' are the posts in the service of the republic.

A Common Sense Approach

Justice M A Aziz's case took the matter a step further. In this case, the court overruled another precedent named Shamsul Hoque Chowdhury v Justice Abdur Rouf 49 DLR (1997) 176. In Abdur Rouf, the court held that constitutional posts are not offices of profit. In M A Aziz, Justice ABM Khairul Hoque denounced it and called for a "Common Sense Approach" to constitutional interpretation. His common sense told us that the office of profit should mean any post or office of the republic which has anything to do "in respect of (not, in) the government".

To conclude, the constitutional foundation of the integrity branch is based on objectivity, neutrality, and insulation from political co-optation. While one cannot question a political government's right to choose its presidential candidate, a candidate so chosen must be open to constitutional scrutiny.

The Writer is a Lecturer of Law, University of Hull, UK.